NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3692-18T4
EILEEN MARTINEZ,
Plaintiff-Respondent,
v.
CITY OF HOBOKEN,
Defendant-Appellant. ___________________________
Submitted December 4, 2019 – Decided December 16, 2019
Before Judges Haas and Mayer.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0250-19.
Pawar Gilgallon & Rudy, LLC, attorneys for appellant (Vijayant Pawar, on the briefs).
Anglin Rea & Cahalane, PA, attorneys for respondent (Patrick H. Cahalane, on the brief).
PER CURIAM Defendant City of Hoboken (City) appeals from a March 1, 2019 order
deeming a March 20, 2018 notice of tort claim filed by plaintiff Eileen Martinez
sufficient under N.J.S.A. 59:8-8 of the Tort Claims Act (TCA), N.J.S.A. 59:1-1
to 12-3. We affirm.
The facts leading to plaintiff's filing of a notice of tort claim are as
follows. Plaintiff fell into a pothole on a street maintained by Hoboken on the
morning of March 20, 2018, injuring her foot. The same day, plaintiff messaged
the City's 311 online reporting system. Identifying herself by her username,
"Eileen623," plaintiff notified the City of the time, location, cause, nature , and
extent of her injury. Plaintiff's written 311 online reporting system message
stated:
I would like to address the horrible pothole situation all thru Washington St. put (sic) in particular on the corner of 9th and Washington St. On the morning of March 20th 2019 (sic) at 8:10 [a.m.] crossing the street to catch the bus watching cars turning to make sure [I] didn't get hit by [a] car[,] my foot went into a pothole and [I] hurt my foot. Had to go to Hoboken University to get it treated. Had to miss a day of school because of this. Something needs to [be] done about the potholes on Washington St[.] [as soon as possible]. I was only allowed to upload [one] picture but have many more. If you need more pictures[,] your (sic) more then (sic) welcome to contact me.
A-3692-18T4 2 Plaintiff also attached photographs of her injured foot and the pothole. Plaintiff
included a comment with the pothole photograph that stated: "These are the
conditions of Washington St[.] all thru Washington St. An[d] due to these
conditions that only keeps getting worse [I] suffered left foot injury."
Plaintiff did not include her full name and address in her 311 online
submission to the City. Nor did she sign the message other than to identify her
username, "Eileen 623." Two days after receiving plaintiff's message , the City
sent an email to plaintiff, acknowledging her submission and assigning a
tracking number.
Six months after she fell, plaintiff retained counsel. On October 10, 2018,
plaintiff's counsel notified the City of plaintiff's injury and stated plaintiff
complied with the TCA by submitting information to the City's 311 online
reporting system on March 20, 2018. The attorney asked if the City had a
specific notice of claim form to proceed with plaintiff's claim. Counsel also
asked if the City considered plaintiff's March 20 notice deficient or non-
compliant with the TCA. The City forwarded its official notice of claim form
to plaintiff's counsel. However, it did not advise whether it deemed plaintiff's
March 20 notice deficient or non-compliant with the TCA. Plaintiff's counsel
A-3692-18T4 3 submitted the completed official notice of claim form to the City five days after
receipt of the document.
Because she received no response from the City regarding acceptance of
her notice of claim, in January 2019, plaintiff filed a motion to deem her March
20, 2018 notice sufficient. Alternatively, plaintiff requested permission to file
a late notice of tort claim.
The City opposed the motion and submitted a certification from the City's
Director of Environmental Services. According to the certification, the City
"did not receive a tort claim notice from plaintiff until after October 15, 2018
(seven months after the accident)." The certification also stated the City "was
unable to properly investigate any claim of plaintiff['s]" before October 15,
2018, and the City "could not have an expert opine about any alleged defe ct at
the time of the accident as road conditions significantly change over seven (7)
months in the City due to weather, traffic, snow-plowing and the passage of
time." The City contended it was "severely prejudiced in its ability to properly
investigate and defend any claim by plaintiff."
After reviewing the motion papers, the motion judge determined plaintiff's
March 20 notice substantially complied with the TCA. The judge's typed
notation on the order stated:
A-3692-18T4 4 The text notification on or about the day of the accident contained sufficient information as to the type of accident, the location, the alleged cause and the nature of the injuries to substantially comply with the tort claim notice requirements. See Guerrero v. City of Newark, 21[6] N.J. Super. 66 (App. Div. 1987). Moreover, the City sent out claim forms to counsel well after the [ninety]-day period expired and the forms were completed and adequately supplemented the text notification so as to comply with N.J.S.A. 59:8-9.
On appeal, defendant argues the judge erred in deeming plaintiff's March
20, 2018 notice, sent through the City's 311 online message reporting system,
substantially complied with the requirements of the TCA.
We review a decision from an order finding substantial compliance with
the TCA for abuse of discretion. See D.D. v. Univ. of Med. & Dentistry of N.J.,
213 N.J. 130, 147 (2013). Such a decision "will be sustained on appeal in the
absence of a showing of an abuse thereof." Lamb v. Global Landfill Reclaiming,
111 N.J. 134, 146 (1988).
Pursuant to the TCA, a person may not bring an action against a public
entity unless the person presents the public entity with a notice of claim within
ninety days after the cause of action accrued. N.J.S.A. 59:8-8 to -9. Plaintiff
contended her March 20, 2018 message to the City's 311 online reporting system
was filed within ninety days of her injury and substantially complied with the
TCA.
A-3692-18T4 5 N.J.S.A. 59:8-4, entitled "Contents of claim," provides that a claim under
the TCA shall include:
a. The name and post office address of the claimant;
b. The post-office address to which the person presenting the claim desires notices to be sent;
c. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;
d. A general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;
e. The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and
f. The amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3692-18T4
EILEEN MARTINEZ,
Plaintiff-Respondent,
v.
CITY OF HOBOKEN,
Defendant-Appellant. ___________________________
Submitted December 4, 2019 – Decided December 16, 2019
Before Judges Haas and Mayer.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0250-19.
Pawar Gilgallon & Rudy, LLC, attorneys for appellant (Vijayant Pawar, on the briefs).
Anglin Rea & Cahalane, PA, attorneys for respondent (Patrick H. Cahalane, on the brief).
PER CURIAM Defendant City of Hoboken (City) appeals from a March 1, 2019 order
deeming a March 20, 2018 notice of tort claim filed by plaintiff Eileen Martinez
sufficient under N.J.S.A. 59:8-8 of the Tort Claims Act (TCA), N.J.S.A. 59:1-1
to 12-3. We affirm.
The facts leading to plaintiff's filing of a notice of tort claim are as
follows. Plaintiff fell into a pothole on a street maintained by Hoboken on the
morning of March 20, 2018, injuring her foot. The same day, plaintiff messaged
the City's 311 online reporting system. Identifying herself by her username,
"Eileen623," plaintiff notified the City of the time, location, cause, nature , and
extent of her injury. Plaintiff's written 311 online reporting system message
stated:
I would like to address the horrible pothole situation all thru Washington St. put (sic) in particular on the corner of 9th and Washington St. On the morning of March 20th 2019 (sic) at 8:10 [a.m.] crossing the street to catch the bus watching cars turning to make sure [I] didn't get hit by [a] car[,] my foot went into a pothole and [I] hurt my foot. Had to go to Hoboken University to get it treated. Had to miss a day of school because of this. Something needs to [be] done about the potholes on Washington St[.] [as soon as possible]. I was only allowed to upload [one] picture but have many more. If you need more pictures[,] your (sic) more then (sic) welcome to contact me.
A-3692-18T4 2 Plaintiff also attached photographs of her injured foot and the pothole. Plaintiff
included a comment with the pothole photograph that stated: "These are the
conditions of Washington St[.] all thru Washington St. An[d] due to these
conditions that only keeps getting worse [I] suffered left foot injury."
Plaintiff did not include her full name and address in her 311 online
submission to the City. Nor did she sign the message other than to identify her
username, "Eileen 623." Two days after receiving plaintiff's message , the City
sent an email to plaintiff, acknowledging her submission and assigning a
tracking number.
Six months after she fell, plaintiff retained counsel. On October 10, 2018,
plaintiff's counsel notified the City of plaintiff's injury and stated plaintiff
complied with the TCA by submitting information to the City's 311 online
reporting system on March 20, 2018. The attorney asked if the City had a
specific notice of claim form to proceed with plaintiff's claim. Counsel also
asked if the City considered plaintiff's March 20 notice deficient or non-
compliant with the TCA. The City forwarded its official notice of claim form
to plaintiff's counsel. However, it did not advise whether it deemed plaintiff's
March 20 notice deficient or non-compliant with the TCA. Plaintiff's counsel
A-3692-18T4 3 submitted the completed official notice of claim form to the City five days after
receipt of the document.
Because she received no response from the City regarding acceptance of
her notice of claim, in January 2019, plaintiff filed a motion to deem her March
20, 2018 notice sufficient. Alternatively, plaintiff requested permission to file
a late notice of tort claim.
The City opposed the motion and submitted a certification from the City's
Director of Environmental Services. According to the certification, the City
"did not receive a tort claim notice from plaintiff until after October 15, 2018
(seven months after the accident)." The certification also stated the City "was
unable to properly investigate any claim of plaintiff['s]" before October 15,
2018, and the City "could not have an expert opine about any alleged defe ct at
the time of the accident as road conditions significantly change over seven (7)
months in the City due to weather, traffic, snow-plowing and the passage of
time." The City contended it was "severely prejudiced in its ability to properly
investigate and defend any claim by plaintiff."
After reviewing the motion papers, the motion judge determined plaintiff's
March 20 notice substantially complied with the TCA. The judge's typed
notation on the order stated:
A-3692-18T4 4 The text notification on or about the day of the accident contained sufficient information as to the type of accident, the location, the alleged cause and the nature of the injuries to substantially comply with the tort claim notice requirements. See Guerrero v. City of Newark, 21[6] N.J. Super. 66 (App. Div. 1987). Moreover, the City sent out claim forms to counsel well after the [ninety]-day period expired and the forms were completed and adequately supplemented the text notification so as to comply with N.J.S.A. 59:8-9.
On appeal, defendant argues the judge erred in deeming plaintiff's March
20, 2018 notice, sent through the City's 311 online message reporting system,
substantially complied with the requirements of the TCA.
We review a decision from an order finding substantial compliance with
the TCA for abuse of discretion. See D.D. v. Univ. of Med. & Dentistry of N.J.,
213 N.J. 130, 147 (2013). Such a decision "will be sustained on appeal in the
absence of a showing of an abuse thereof." Lamb v. Global Landfill Reclaiming,
111 N.J. 134, 146 (1988).
Pursuant to the TCA, a person may not bring an action against a public
entity unless the person presents the public entity with a notice of claim within
ninety days after the cause of action accrued. N.J.S.A. 59:8-8 to -9. Plaintiff
contended her March 20, 2018 message to the City's 311 online reporting system
was filed within ninety days of her injury and substantially complied with the
TCA.
A-3692-18T4 5 N.J.S.A. 59:8-4, entitled "Contents of claim," provides that a claim under
the TCA shall include:
a. The name and post office address of the claimant;
b. The post-office address to which the person presenting the claim desires notices to be sent;
c. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;
d. A general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;
e. The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and
f. The amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.
The notice requirements of the TCA are "not intended as 'a trap for the
unwary.'" Lebron v. Sanchez, 407 N.J. Super. 204, 215 (App. Div. 2009)
(quoting Lowe v. Zarghami, 158 N.J. 606, 629 (1999)). The TCA's notice
requirements are "more properly denominated as a notice of injury or loss."
Beauchamp v. Amedio, 164 N.J. 111, 121 (2000). Therefore, "substantial rather
A-3692-18T4 6 than strict compliance with the notice requirements of the [TCA] may
satisfactorily meet the statute's mandates." Lebron, 407 N.J. Super. at 215.
The doctrine of substantial compliance is an equitable doctrine intended
"to avoid the harsh consequences that flow from technically inadequate actions that nonetheless meet a statute's underlying purpose." Thus, the doctrine operates "to prevent barring legitimate claims due to technical defects." In general, it rests on a demonstration that a party took "a series of steps . . . to comply with the statute involved," and those steps achieved the statute's purpose, as for example, providing notice. Even so, the doctrine can only apply if there is no prejudice to the other party and if there is "a reasonable explanation why there was not strict compliance with the statute."
[County. of Hudson v. State, Dep't of Corr., 208 N.J. 1, 21-22 (2011) (alteration in original) (citations omitted).]
To warrant application of the doctrine of substantial compliance, the
moving party must show: (1) the lack of prejudice to the defendant party; (2)
steps taken to comply with the statute; (3) a general compliance with the purpose
of the statute; (4) reasonable notice of a plaintiff's claim; and (5) a reasonable
explanation by the moving party for why there was no strict compliance with
the statute. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 151 (2003).
A-3692-18T4 7 Here, the City failed to show prejudice and plaintiff provided a reasonable
explanation for her lack of strict compliance with the TCA's notice of claim
requirements.
We first consider plaintiff's explanation for her failure to strictly comply
with the TCA's notice of claim requirements. On March 20, 2018, in her 311
message to the City's online reporting system, plaintiff provided the date and
location of her injury, described her injured body part, provided a photograph
of her injury and the pothole, offered to provide additional information and
photographs to the City to allow it to investigate her claim, and her email
address. Two days later, the City sent a reply to plaintiff's message and provided
a tracking number assigned to her claim. During the ninety-day time period
from the date of her injury, plaintiff believed her 311 message to the City
constituted sufficient notice of her claim. Plaintiff took steps to comply with
the TCA notice of claim and achieved the TCA's purpose by notifying the City
of her injury.
Not hearing from the City after its reply to her 311 message, plaintiff
retained an attorney. Immediately after being retained, plaintiff's attorney asked
if the City accepted the 311 message as sufficient notice of plaintiff's claim
under the TCA. Although the City never responded to counsel's inquiry, the
A-3692-18T4 8 City forwarded its specific notice of claim form to plaintiff's attorney, well after
expiration of the TCA's ninety-day deadline for filing a notice of claim. On
October 15, 2018, plaintiff's counsel filed the "official tort claims act notice
form" with the City. There is no dispute that plaintiff provided all the
information required in the City's "official tort claims act notice form." Having
reviewed the record, we are satisfied plaintiff provided an acceptable
explanation for her failure to strictly comply with the notice of claim
requirements of the TCA.
We next consider the prejudice to the City as a result of plaintiff's March
20 notice of claim. While the City claims it never received plaintiff's 311
message, the record does not support that contention. Two days after plaintiff's
311 message was sent, the City responded to plaintiff and assigned a tracking
number. Based on the City's response to plaintiff, we are satisfied that her notice
of claim in the 311 message was "actually received at . . . [the] local public entity
within the time prescribed for presentation thereof," N.J.S.A. 59:8-109(b), and
therefore the City received timely notice of the claim.
Nor is there anything in the City's certification opposing plaintiff's motion
that explains why the City suffered prejudice. To establish prejudice, a
defendant must show "[m]ore than a sweeping generalization." Lebron, 407 N.J.
A-3692-18T4 9 Super. at 220 (citing Leidy v. County. of Ocean, 398 N.J. Super. 449, 463 (App.
Div. 2008)). Although the City argues it "was unable to immediately and
properly investigate the incident of the alleged condition," the City had the exact
street location of the pothole that caused plaintiff's injury. Based on the
information in plaintiff's 311 message, the City could have inspected the
intersection of 9th Street and Washington Street to confirm the condition of the
road. There is nothing in the record explaining why, under these circumstances,
"the City was unable to properly investigate any claim of plaintiff." Nor did the
City explain why it "could not have an expert opine about any alleged defect at
the time of the accident" since plaintiff provided information with the exact
location of the pothole on March 20, 2018. Any investigation and expert report
on behalf of the City could have been prepared prior to "road conditions
significantly chang[ing] over seven (7) months in the City due to weather,
traffic, snow-plowing and the passage of time."
The City also failed to alert plaintiff to any deficiencies in her message to
the 311 online reporting system. It did not do so in its March 22, 2018 email
reply to plaintiff. Nor did the City respond to the inquiry by plaintiff's counsel
to advise whether it deemed the 311 message deficient or non-compliant with
the TCA. "If deficiencies in the notice were uncovered, justice and fairness
A-3692-18T4 10 require plaintiff to be advised, not ignored." Lebron, 407 N.J. Super. at 219
(citing Murray v. Brown, 259 N.J. Super. 360, 365 (Law Div. 1991)).
Under these circumstances, the motion judge did not abuse her discretion
in finding plaintiff's 311 message submitted to the City on March 20, 2018
substantially complied with the TCA's requirements for a notice of claim.
Plaintiff provided information the City needed to investigate her claim and,
despite the technical defects in plaintiff's 311 message, the message satisfied the
TCA's intended purpose in requiring submission of a notice of claim. No
demonstrable prejudice was established by the City to preclude the judge's
finding that plaintiff substantially complied with the notice of claim
requirements. In reviewing the unique facts in this case, plaintiff's 311 message
to the City's online reporting system provided the City with effective and timely
notice of her claim consistent with the notice requirements of the TCA.
Affirmed.
A-3692-18T4 11